Saturday, April 03, 2010

Health care reform vs. judicial activism? – Some speculations

[Also posted, with slight revisions, in the new Dissent blog, "Arguing the World". Whether or not this particular post interests you, I recommend checking out Arguing the World.]

Will right-wing opponents of the new health care reform legislation be able to overturn it by getting the Supreme Court to declare it unconstitutional? I’d like to think the answer is a definite no, and probably it is, but I’m not sure we can rule out the possibility that the answer should be maybe.

I am definitely not a professional Supreme Court watcher, and I make no pretense to expertise in such matters. My non-expert impression is that such an outcome is unlikely, and the bulk of more expert opinion seems to incline in the same direction. (For some representative treatments of the purely legal issues, see the on-line New York Times round-up of lawyers and legal scholars on the question: “Is the Health Care Law Unconstitutional?”).

Unlikely--but not impossible. After all, back in 2000 the prospect that the Supreme Court would intervene in such a crudely and blatantly unprincipled way to decide the outcome of the Presidential election seemed a little far-fetched to many people until it actually happened. And, more recently, the sweepingly high-handed manner in which the Supreme Court swept away more than a century of federal and state laws limiting the ability of corporations to spend money in federal elections should have alerted even people who hadn’t been paying attention that we are living through an era of exceptionally unabashed judicial activism.

Furthermore, while most of the legal analysts urging the Supreme Court to declare the bill unconstitutional are, unsurprisingly, on the right, I notice that even some generally left-of-center analysts like Jonathan Turley believe they might have a case:

One of the most contested issues is the so-called individual mandate under which Congress has ordered all citizens to get medical insurance or face fines. Though the federal government has the clear advantage in such litigation, these challenges should not be dismissed as baseless political maneuvering. There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states' rights in U.S. history.

So the possibilities for Supreme Court nullification of the Patient Protection and Affordable Care Act may be worth pondering in advance, just in case.

=> The Democratic health care reform package that emerged from more than a year of political drama and legislative trench warfare is certainly flawed, incomplete, and otherwise unsatisfactory in many respects. Nevertheless, it adds up to a crucial first step in the right direction, and its enactment was an enormously important achievement—whereas the ultimate failure of the whole effort would have been a political and public-policy fiasco.

However, the political fight over this bill is far from over. Republicans immediately began threatening to repeal it as soon as they regain control of Congress, and in the meantime they promise to make repeal a central issue for the 2010 mid-term elections. (More cautious exceptions have been few.)

I’m generally persuaded by the arguments that, even if the Republicans win a crushing victory this November, they still won’t actually be able to repeal the bill. As long as Obama is President, they’ll be blocked by a Presidential veto. And even if a Republican President committed to repeal gets elected down the line, the Republicans will run into an obstacle that is close to being an unwritten law of modern American politics—once government benefits have been granted to a significant body of middle-class voters, it is very hard to take them back. Nevertheless, these factors should not lead supporters of the PPACA to feel complacent. Even if a Republican Congress can’t repeal it outright, there are various ways they could undermine, sabotage, and distort its implementation.

Meanwhile, opponents of the bill are also trying to circumvent those political obstacles by taking their case to the federal courts, a route that will probably lead to the Supreme Court. At last count, 14 state Attorneys-General (all but one of them Republican) have joined two lawsuits seeking to have the new health care law declared unconstitutional, describing it as “an unprecedented encroachment on the sovereignty of the states."

The heart of the objection, as noted above, is to the individual mandate that the new law shares with RomneyCare in Massachusetts. That is, in return for promising universal health insurance coverage, at least as a goal, the law requires that everyone obtain coverage. If an individual is not covered through an employer (or by Medicare or other public insurance), then he or she is required to buy health insurance individually (with (with subsidies to assist individuals for whom that would be an undue financial burden).

This is not a secondary or optional aspect of the plan—and not only because the fundamental moral basis of this health care reform lies in a commitment to social solidarity and mutual responsibility. Universal insurance coverage requires universal participation. The key principle of insurance, after all, is to share and spread risk. Without universal, or close-to-universal, participation, the problems of “adverse selection” and incentives for free-riding would make the rest of the system unworkable.

The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.

At first glance, this might seem like a puzzling basis for a lawsuit. No, the text of the Constitution doesn’t explicitly mention health insurance. But hasn’t it long been accepted that the federal government can require us to pay taxes toward Medicare, which is certainly a system of health insurance? And how about Social Security, which is a system of retirement insurance? No doubt some people still regard both of those as unconstitutional, but that has become a marginal view. And is it really “unprecedented” for the federal government to require individuals to pay directly for their own health insurance? Actually, no. As Paul J. O'Rourke helpfully points out:

In July, 1798, Congress passed, and President John Adams signed into law “An Act for the Relief of Sick and Disabled Seamen,” authorizing the creation of a marine hospital service, and mandating privately employed sailors to purchase healthcare insurance.

Since John Adams happened to be one of the framers of the Constitution, we can presume that he had some understanding of the Constitution’s “original intent.”

QED? Not quite. Here is where the argument gets a bit tricky.

Ironically, the feature of ObamaCare that renders it potentially vulnerable to this legal challenge is precisely one of those features that make it a moderate, centrist, gradualist reform, as opposed to the “radical” or “socialistic” measure claimed by right-wing propaganda. Medicare and Social Security are single-payer systems of public insurance funded directly by federal taxes, and the same was true for the 1798 plan covering merchant seamen. But the current Democratic health care plan did not attempt to institute a single-payer, Medicare-for-all system (let alone a “government take-over of health care”). Instead, for better or worse, it left in place a system in which most non-Medicare health insurance is provided through private profit-seeking corporations. In the end, even the alternative of a public option was knocked out of the bill.

Thus, precisely because the plan is not “socialistic,” opponents now claim that even if we accept the constitutionality of Social Security and Medicare, the insurance mandate in this bill really is “unprecedented.” Randy Barnett, Professor of Legal Theory at Georgetown Law Center and proponent of the so-called "Lost Constitution" (essentially, the pre-New Deal Constitution), puts it this way:

Congress has never before mandated that a citizen enter into an economic transaction with a private company, so there can be no judicial precedent for such a law.

Again, some readers may be perplexed. Aren’t we legally required to buy auto insurance, from “a private company,” if we want to drive a car? The rejoinder seems to be that those requirements are instituted by state governments, not by the federal government. Others add that buying a car and getting a driver’s license are voluntary choices, so citizens can avoid these requirements simply by not buying or driving a car.

Barnett, who clearly feels he has an undisputable knock-down argument here, reaches for a reductio ad absurdum:

Imagine if Congress ordered the majority of American households without a firearm to buy a handgun from a private company, and punished their failure to do so with an escalating monetary fine, which it labeled a “tax.” Would the supporters of the health insurance mandate feel the same about the constitutionality of such a measure?

Well, we don't have to imagine it. As Brad DeLong quickly pointed out, the Militia Act of 1792, passed by Congress and signed into law by President George Washington, "ordered the majority of American households" to do precisely that.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia [….] That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed [….]

Etc. In short, Barnett’s claim that “Congress has never before mandated that a citizen enter into an economic transaction with a private company” is, again, historically inaccurate. It’s clear that federal laws with individual mandates date back to the earliest years of the republic.

Will these historical precedents, and others that are sure to turn up, be enough to settle the matter? Probably not.

=> I repeat that I find it unlikely that the Supreme Court will actually throw out the health care reform bill, if only because this could lead to a major political and constitutional crisis. But two interconnected factors give me pause.

First, it so happens that the legal basis for much of the national regulatory state that has grown up since the New Deal rests on a surprisingly narrow constitutional foundation—and a potentially shaky foundation, if a hostile Supreme Court were determined to make it so. For the lawyers, the ultimate basis for a wide range of federal laws and other measures whose legitimacy most of us have come to take for granted (including, say, the Civil Rights Act of 1964) is derived from implications of the Commerce Clause of the Constitution (Article I, Section 8, Clause 3), which gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In many cases, this has involved interpreting the relevance of particular laws to “interstate commerce” in fairly broad and creative ways—and even in ways that, from a non-legalistic perspective, could plausibly be described as strained or problematic. Thus, in terms of its ultimate legal basis, the whole apparatus of the national regulatory state in the US is a bit of a Rube Goldberg contraption.

In itself, that’s not necessarily a problem. All legal systems rely on legal fictions and on interpretive conventions that may look strained or implausible to outsiders. As long as they continue to be accepted as authoritative, and are embedded in a solid structure of taken-for-granted precedents, there’s no reason to assume that they are necessarily vulnerable to challenge—unless, say, an exceptionally activist and ideologically aggressive Supreme Court decided to exploit that potential vulnerability. But this brings me to my next point.

The second disquieting factor is that we are, indeed, dealing with an exceptionally and aggressively activist Supreme Court. This obvious fact has been obscured, to some degree, by the continuing tendency to equate “judicial activism” with “liberal judicial activism.” Even people who should know better often talk as though “judicial activism” necessarily meant using the courts to take the initiative in promoting liberal or progressive ends—challenging legalized racism, extending rights to oppressed or stigmatized minorities, protecting the rights of criminal defendants, and the like—whereas conservatives claim to favor “judicial restraint.” But these presumptions, and the political slogans that go with them, are hangovers from the Warren Court of the 1950s-1960s and its after-effects in the Burger Court during the 1970s. (Warren Burger, not Earl Warren, was Chief Justice in 1973 when the Roe vs. Wade decision established a woman’s right to choose abortion.) These clichés long ceased to have much contact with reality.

It shouldn’t be necessary (but sometimes it is) to make the obvious point that, in the context of these political and ideological divisions, judicial activism is a double-edged sword. If we use the most straightforward criterion of Supreme Court “judicial activism”—the frequency with which the Court strikes down federal and state laws—then the Rehnquist and Robert Courts have been among the most activist in American history. And it looks as though the transition from the Rehnquist Court to the Roberts Court has brought an escalation, not a moderation, of this tendency. During their confirmation hearings, both John Roberts and Samuel Alito piously insisted on their commitment to judicial restraint, their respect for judicial precedent, their disinclination to legislate from the bench, and so on—and then, once appointed, went on to demonstrate that they didn’t mean a bit of it, and that on keyissues they have a majority of the Court on their side.

Nor should this seem surprising or paradoxical, because in certain respects the era of the Warren/Burger Court was anomalous. As people who know American history are aware, for most of that history periods of aggressive judicial activism have usually, though not exclusively, involved a willingness by the courts to block laws passed by democratically elected legislatures in ways that served the interests of wealth and power. (At times during the 19th century, this included active support for maintaining white supremacy. Before the Civil War, there was the notorious Dred Scott decision, and after the Civil War, a series of disgraceful Supreme Court decisions helped undermine efforts by the federal government to defend Reconstruction in the South against a violent white-supremacist backlash spearheaded by the Redeemer Democrats and the Ku Klux Klan.)

In 1905 Oliver Wendell Holmes, Jr., a conservative jurist who could hardly be called a crypto-socialist or egalitarian social reformer in his sympathies, felt compelled to remind his Supreme Court colleagues that the contested “economic theory” of doctrinaire free-market fundamentalism that they found so convincing was not, in fact, part of the Constitution. (“The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.”) But this particular confusion pervaded Supreme Court decisions for a long time. During Franklin Roosevelt’s first term, the Supreme Court struck down so much New Deal legislation that it almost provoked a head-on confrontation between Roosevelt and the Court. Roosevelt did develop a plan to pack the court with less obstructionist Justices, but that gambit generated enough opposition to kill it. For its part, the Supreme Court backed off, and for the next half-century it generally recognized the right of the federal government to pass national regulatory legislation.

And, generally speaking, it still does. But over the past few decades there have been signs of incipient counter-reaction. Rehnquist came to the Court determined to push a “federalism revolution” that involved, essentially, using the Supreme Court (and the rest of the federal court system) to repeal much of the New Deal. The progress of this agenda was limited and gradual rather than revolutionary (some observers sympathetic to the effort even concluded, in disappointment, that “the federalism boomlet has fizzled”), in large part because the Rehnquist Court was divided—even some of the Justices appointed by Republican Presidents turned out to be relatively moderate, to the frequent dismay of the Republican hard right. Nevertheless, it did give rise to some startling decisions. The legal journalist Linda Greenhouse recently recalled some of the most dramatic examples:

One of the more “moderate” Republican appointees on the Court, Sandra Day O’Connor, has now been replaced by Samuel Alito. So wouldn’t the current challenge to the constitutionality of the individual health insurance mandate offer the opportunity for an even more momentous decision along these lines?

As it happens, despite the ever more rightward tilt of the Supreme Court, Greenhouse nevertheless believes that the chances that the Roberts Court will overturn the health care reform law are remote. Greenhouse knows a lot more about such matters than I do, but I am not entirely convinced by her analysis. The main reason she offers is that, although Roberts and Alito are certainly not more centrist than Rehnquist and O’Connor, they are less committed to the “federalism” agenda than their predecessors. Even if that’s true, I’m not sure how much it matters. If states-rights arguments can provide them with a rationale for striking down the individual mandate, thus eviscerating the most important piece of quasi-social-democratic social legislation in decades, I suspect they might find the opportunity very hard to resist.

=> Let me reiterate that all these prognoses are matters of informed speculation—and, in my case, the speculation isn’t even so well informed. To avoid any possible misunderstanding, I also want to make it clear that I’m not suggesting that the current right-wing majority on the Supreme Court (or, more precisely, the right-wing quartet of Roberts, Alito, Scalia, and Thomas plus the swing-voter Anthony Kennedy) are just political operatives with robes who would simply manipulate the law to advance a partisan agenda. On the contrary, whatever one thinks of them—and I don’t think much of some of them—everything I’ve read about them seems to indicate that they are serious jurists committed to the rule of law and to constitutional principles as they understand them. But all the evidence also suggests that they are sincerely committed to an ideologically driven agenda of aggressive judicial activism.

At the same time, as Finley Peter Dunne’s character Mr. Dooley sagely observed back in the 1930s, it’s also true that "the Supreme Court follows the election returns." Nowadays, like everyone else, they probably follow the polls, too. So my guess, for what it’s worth, is that if the level of public opposition to the health care reform bill stays roughly the same or declines over the rest of 2010, and if the Democrats retain control of Congress in the November elections, then this legal challenge to the constitutionality of the individual mandate will probably go nowhere. On the other hand, if the Republicans win a crushing victory in November—then we’ll see.

That prediction could also turn out to be entirely wrong. Meanwhile, we should probably expect a high-volume propaganda war over the unconstitutionality and iniquity of the individual mandate at least until November.

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Of course, if people are genuinely concerned that a federal mandate to buy something from private companies is “unprecedented” and unconstitutional, the fix is obvious. Just move to a government-run single-payer system, like Medicare, and cut out private insurance companies entirely. I’m inclined to think that would produce a better health care system anyway.

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About Me

Jeff Weintraub is a social & political theorist, political sociologist, and democratic socialist who has been teaching most recently at the University of Pennsylvania, Bryn Mawr College, and the New School for Social Research.. He was a Visiting Scholar at the Center for European Studies at Harvard University in 2015-2016 and is currently a Research Associate at the Graduate School of Social Work and Social Research, Bryn Mawr College.
(Also an Affiliated Professor with the University of Haifa in Israel & an opponent of academic blacklists.)